erry Campbell, a white man, was indicted for second-degree murder by a grand jury in Evangeline Parish, Louisiana. Campbell moved to quash the indictment by citing a long history of racial discrimination in the selection of grand jury forepersons in Evangeline Parish. No African-American had served as a foreperson for the past 16 years despite the fact twenty percent of the registered voters were black. Campbell claimed such practices violated his Fourteenth Amendment equal protection and due process rights. A Louisiana trial judge denied Campbell's challenge, holding that he lacked standing as a white man complaining about the exclusion of African-Americans from serving as forepersons. The Louisiana Court of Appeal overruled the trial judge and decided Campbell had standing. The Louisiana Supreme Court reversed the Court of Appeal.

Question

Does the exclusion of other races other than the defendant's violate the Due Process Clause of the Fourteenth Amendment?

Yes. Without reaching the merits, the Court, in a unanimous opinion written by Justice Anthony Kennedy, held that "a defendant has standing to litigate whether his conviction was procured by means or procedures which contravene due process." A white defendant could assert the right of the grand jury to be free of discrimination because racial discrimination in jury selection casts doubt on the integrity of the entire trial process.

Petitioner Terry Campbell has been improperly denied standing to raise the equal protection, due process, and Sixth Amendment fair crosssection objections to the grand jury which indicted him.

Despite the acknowledged and undisputed de facto racial discrimination practiced against African Americans in Evangeline Parish, petitioner was denied the opportunity to object solely because he is white.

The case is about race, and the case is about racial discrimination.

The case is about petitioner's equal protection, due process, and Sixth Amendment claims.

The case is not about gender, retroactive application to other cases, or overturning Hobby.

The facts in the case are simple and undisputed.

Number 1, African Americans were not being selected as grand jury forepersons and number 2, petitioner was prevented from objecting to number 1 solely because he is white.

Unknown Speaker: Is it true that there's never been a nonwhite foreman in Evangeline County?

Mr. Burnes: I would not know past the evidence presented to the trial court.

For the period of evidence presented to the trial court there was never a black selected.

I don't know historically, back through the Louisiana Purchase--

Unknown Speaker: But you're saying from the years... what time frame are we talking about that there has been no nonwhite?

Mr. Burnes: --A 16-1/2 year time period during which generally there are supposed to be two grand juries selected each year.

One year I believe there was only one grand jury selected, so it was a string of 35 consecutive white grand jury forepersons.

Unknown Speaker: There's a difference in the way the foreperson is selected in New Orleans, is that right?

Mr. Burnes: I believe there is, Your Honor.

Unknown Speaker: Is the experience any different there?

Mr. Burnes: I would not know that.

I haven't looked into that, Your Honor.

Unknown Speaker: So you don't know whether Evangeline County is unique in Louisiana or represents the general way things are--

Mr. Burnes: I would say, Your Honor, that there have been cases brought up in a lot of the parishes in Louisiana, in Sabine Parish, I believe in Lafayette Parish and Lake Charles.

I don't have a list of exactly which parishes, but I know that this has been brought up in a lot of the parishes there.

Unknown Speaker: --This same issue?

Mr. Burnes: The issue of nonselection of whites to the grand jury--

Unknown Speaker: So apparently other parishes are doing the same thing.

Mr. Burnes: --To a greater or lesser extent, yes, sir.

Yes, Your Honor.

Unknown Speaker: Uhhuh.

Let me ask you, since you're interrupted, how... you make a faircrosssectionofthejury claim with regard to the foreperson of the jury?

Unknown Speaker: Well, would you like to justify it, since you're pursuing it?

Mr. Burnes: --Yes, Your Honor.

In fact, there are two groups that the fair crosssection claim can be focused upon.

One is a grand jury group as a whole.

You have a grand jury where 11 of them are chose randomly and fairly, we would submit, and then the twelfth member is chosen unfairly, always chosen as a white person.

That's going to distort that group.

You don't have the fair crosssection in the grand jury itself.

But even more importantly, the... if you look at the grand jury venire, the approximately 300 people called to court that day whose names are going to be drawn and placed on the grand jury, the judge gets to the point where he selects the grand jury foreman, and you no longer have the representative crosssection sitting up there.

You only have the white people sitting in the room that the judge selects from.

That effective grand jury venire--

Unknown Speaker: How does this work?

There are 300 people on the big venire that are called?

Mr. Burnes: --Your Honor, I'm not 100-percent sure about the number of 300.

A large number of people are called, given summons to show up for jury duty.

Unknown Speaker: And the judge selects someone from that large number to be the foreperson of the grand jury.

Mr. Burnes: That is correct, Your Honor.

Unknown Speaker: And then subsequently the other members of the grand jury are selected at random by a clerk or something of that sort.

The judge... I don't know that the code article specifically means that he has to make his selection before the other ones are chosen.

When I looked through the minutes for the past 16-1/2 years, generally they seemed to indicate that the 12... the 11 were drawn at random and then the judge selected someone else sitting in there, and again occasionally minutes are entered very loosely or just from a form, so I don't know if that does mean he was first or second on that.

Unknown Speaker: What does the foreperson of a grand jury do in Louisiana?

Mr. Burnes: Your Honor, that is pointed out in the State's brief at page 26.

The statutory provisions provide that the foreman shall preside over all hearings, may delegate duties to other grand jurors, and may determine rules or procedures.

This basically means that he leads the discussions, he decides when to vote, how to vote, and what to vote on.

Unknown Speaker: Can he cast a vote himself?

Mr. Burnes: Oh, yes, he does.

He is one of the 12 voting members of the grand jury, and that is--

Unknown Speaker: And that was left out of the State's description of his powers at page 26.

Mr. Burnes: --I don't think the State was trying to mislead.

I think the State was at that point in 26 attempting to show some of the other powers of the grand jury foreman--

Unknown Speaker: Well, it said it's ministerial, because he has some duties that might be called ministerial, but he's also a vote... or she is also a voting member.

Mr. Burnes: --And that I believe is the very important fact in here.

Petitioner Campbell takes the position that this... this Court has had previous cases saying you cannot pick a grand jury unfairly.

Here, one voting member of the grand jury is picked unfairly.

Petitioner Campbell has equal... has raised equal protection--

Unknown Speaker: Is that different, then, from the situation in the Hobby case that we had?

Mr. Burnes: --In the Hobby case--

Unknown Speaker: Where the Court said the grand jury foreman in that case had a ministerial role?

Mr. Burnes: --The basic difference is, in the Hobby case a grand jury, the entire grand jury is selected in a fair manner and then that one person, the grand jury foreman, is given the job of doing the clerk duties for the grand jury, but the point is that whole grand jury was chosen in a fair manner.

Unknown Speaker: But in Hobby how was the foreman chosen?

Mr. Burnes: I believe he was chosen by the judge, Your Honor.

Unknown Speaker: Why is that different?

Why is that different from your case?

Mr. Burnes: It's different because the judge is looking at the grand jury, the entire grand jury panel who was chosen in a fair fashion.

In Louisiana, 11/12ths of the grand jury is chosen in a fair fashion and then the grand jury foreman is chosen not from the panel but from the venire sitting out there, and that choice is made in a discriminatory fashion.

That choice is always made for a white grand jury foreperson.

Unknown Speaker: But in Hobby it was the same objection, wasn't it?

The foreman or foreperson was always white.

Mr. Burnes: The objection... yes, the objection was that the foreperson was always white.

The objection here is that the foreperson was always white, but here it's that the voting member was chosen in a discriminatory manner to sit on the grand jury.

In Hobby, there was no voting member chosen in a discriminatory fashion to sit on the grand jury.

Unknown Speaker: But a choice was just made in a discriminatory fashion by people already chosen.

I mean, the discrimination is still there.

Mr. Burnes: Oh, there is a discrimination and at that point you would look to... and Hobby focused on what is the harm that is going to come from this.

I don't think Hobby said there was never... the opinion in Hobby said there was never any discrimination.

It said there was.

But then when you stop and you look, you don't find a due process harm involved there.

Unknown Speaker: Well, Hobby focused on the remedy.

Mr. Burnes: On the remedy.

Unknown Speaker: And what do we have to look at here, just standing?

We're not concerned here today with remedy--

Mr. Burnes: Well, we would--

Unknown Speaker: --but just standing?

Mr. Burnes: --We would submit that remedy is implicated and that standing is implicated.

Standing was the issues cited, or the questions presented in the writ for petition.

However, this Court's rules do say that all questions fairly subsumed are also included and here we have... if we were sitting now before the trial and it hadn't gone forward, this case... this Court would probably only be looking at standing, but the case has gone forward.

Petitioner Campbell has been convicted and sentenced to a life sentence, simply because of the time delays of getting through the courts, so now--

Unknown Speaker: Well, I thought that all... of the questions in the petition refer to whether your client has standing to raise the equal protection claim, the due process claim, and the fair crosssection claim.

It didn't occur to me that you intended to ask us to apply a remedy.

Mr. Burnes: --Your Honor, the questions do--

Unknown Speaker: Other than to rule on the standing claim.

Mr. Burnes: --Your Honor, we do need to have rulings from this Court on standing.

Once this Court does rule on standing the question is, then what?

Unknown Speaker: Send it back, I assume.

Mr. Burnes: Well, Your Honor, that's--

Unknown Speaker: If we were to determine there was standing on some or all of these matters.

Mr. Burnes: --Your Honor, that is one option open to this Court.

Another--

Unknown Speaker: Mr. Burnes, going back from Peters v. Kiff on, in any case where this Court allowed someone to challenge as discriminatory the selection of the petit jury or the grand jury, in any one of those cases, has the result ever been anything other than the conviction got set aside?

Mr. Burnes: --Well, of course, the Hobby case, Your Honor, the conviction was not set aside.

In Rose v. Mitchell, a leading case in this area, the petitioner, this Court held that the petitioner failed to prove his prima facie case and did not set aside the conviction, so there are cases, there are times when this Court may find standing, may find a right, may even find a remedy--

Unknown Speaker: Might... conceivably in this case if standing were recognized the Court could say, but you haven't shown that there was, in fact, discrimination in the selection of the--

Mr. Burnes: --Conceivably the Court could take that opinion.

However, the facts here are very clear.

They've never been disputed.

There are multiple places in the record where the judge repeatedly says, we all know what happened here.

We all know blacks haven't been chosen.

At the actual hearing on the motion to quash the judge allowed Mr. Campbell's thenattorney to present a prima facie case.

He then turned to the State and said, now let's here from you, what do you have to say to it, basically.

The State then only argued on standing, never made any rebuttal with respect to that prima facie case, even--

Unknown Speaker: --Mr. Burnes, if you wanted to bring that issue here you're obligated to put it in your question presented, I think, as Justice O'Connor has pointed out.

You have three subdivisions and every one of them is limited to standing.

Mr. Burnes: --And again, Your Honor, those... the questions do raise the issue of standing, which has been a roadblock in this case.

This Court also has rules that any question is fairly derived... and I don't remember the exact statement, fairly derived from those questions, subsumed--

Unknown Speaker: Fairly subsumed, I think.

I think that means that the general... that the language of the question includes something that perhaps is lesser, or... but it seems to me standing and remedy are two very distinct things.

Mr. Burnes: That's correct, Your Honor, and I haven't had a chance to say it yet, but the equal protection claim has that bare naive claim I just mentioned and also has the more sophisticated third party standing.

If you look in the appendix--

Unknown Speaker: I'm sorry, I didn't understand what you... has the bare what claim?

Mr. Burnes: --The bare, or naive equal protection claim.

Why can I, a white man, be indicted by this illegal grand jury?

That's just a straightforward equal protection claim.

Why does a black man have protection from being indicted by this unconstitutionally selected grand jury but I, a white man, don't have protection from being indicted by this--

Unknown Speaker: Are you also raising... urging that the... Campbell has standing to raise the denial of equal protection to the nonwhite who might have been selected?

Mr. Burnes: --That is correct, Your Honor.

That is the second part, the more sophisticated equal protection claim that comes under the Powers third party standing, that Mr. Campbell is in a position to adequately put forth their rights, all of the analysis that was in the Powers case, that he has a relationship with the excluded jurors, so--

Unknown Speaker: The first equal protection question is sort of... I mean, it's a very strange assertion of equal protection.

Why isn't a perfectly valid answer to that that, well, a black man could object to this... to this grand jury, but a black man couldn't have objected to a grand jury in which the foreman was always a black?

That's perfectly fair.

Mr. Burnes: --In the--

Unknown Speaker: It's almost gameplaying to say that this is an equal protection violation.

It's just a standing question, simple... simply put.

Does he have standing or not?

Mr. Burnes: --It is a standing question, Your Honor, and that's the way the trial court and the supreme court of the State of Louisiana have ruled, is that Mr. Campbell did not have standing to raise--

Unknown Speaker: Right, and it would be perfectly equal protection if Louisiana rules a black man has standing to challenge the exclusion of blacks, and a white man has standing to challenge the exclusion of whites, and neither one has a standing to challenge the opposite.

What's unequal about that?

Mr. Burnes: --Well, the cases in the past, Your Honor, have held that, for instance in Batson, on a preemptory challenge, it doesn't matter whether the defendant is black or white.

They can object... they have a standing to object to the discrimination question.

It doesn't become right or wrong because there's a denial of equal protection involved if you come out the other way.

Mr. Burnes: --Perhaps the reason I'm arguing this way is because the trial courts and the supreme court of the State of Louisiana have couched their rulings in terms of the fact that Mr. Campbell, you are a white man accused of killing a white man, therefore you don't have standing to raise this claim or that claim or the other claim, and--

Unknown Speaker: That's either right or wrong.

Mr. Burnes: --That... and I believe in this case Mr. Campbell has a right to raise the equal protection claim.

Part of the reason I'm arguing this way is also that the State's brief has attacked whether there's Article III standing.

In the sophisticated... what I call the sophisticated equal protection claim there is the third party standing and the due process, I think there's Article III standing.

In the Sixth Amendment claim there's Article III standing.

That is why I'm explaining the claims somewhat, is to show how they fit within the standing requirements of Article III and the exceptions for third party standing as in Powers.

Your Honors, I'd also like to direct your attention, if I could, to the State's brief.

The State in its brief does agree in some forms with the petitioner Campbell's claims on all three grounds.

With respect to the equal protection ground, at page 22, note 9, the State of Louisiana recognizes this Court's decision that if discrimination in the selection of the grand jury itself occurs, the proper remedy is reversal of the subsequent conviction, and that's what happened here.

There was discrimination in the selection of the grand jury itself.

Grand juror number 12 was chosen in a discriminatory manner.

With respect to the due process claim on page 26 and note 12, in Guice 2 the Fifth Circuit noted that because the foreman in Louisiana is selected from the venire rather from the grand jury itself, any discrimination in the selection of a foreman necessarily taints the composition of the grand jury as well.

Only 11 of its 12 members were chosen at random.

If that is so, the petitioner may obtain relief by challenging the composition of the grand jury, and this he has failed to do.

But, in fact, that is what Mr. Campbell has been doing from the beginning.

He's been saying that this twelfth member of the grand jury was chosen in a discriminatory manner, has always been chosen white.

And on page 30, under the B heading with respect to the Sixth Amendment argument, the State writes, if this Court decides that the Sixth Amendment itself is implicated regardless of whether the judicial body at issue is the grand jury or just the grand jury foreman, then the State concedes that under Holland v. Illinois petitioner has standing to assert a Sixth Amendment challenge.

It's the law, the Constitution and its amendments and the prior decisions of this Court, that have forced the State to make concessions on these issues.

In the dissent by Justice Scalia, to which Chief Justice Rehnquist joined in the case of Powers v. Ohio, there's a statement.

It would be absurd to... and this is at page 1379 in the Supreme Court Recorder 111.

It would be absurd to suppose that a black juror has a right not to be discriminated against through peremptory strike in the trial of a black defendant but not in the trial of a white defendant.

However, this is the absurd position the State has taken.

An African American prospective grand juror has a right not to be discriminated against in the selection of the grand jury foreperson in cases involving black defendants but not in cases involving white defendants.

In its conclusion to its brief in page 34 the State says, Louisiana in no way condones race discrimination in the administration of criminal justice in any corner.

However, the State's presence here today shows otherwise.

This Court has the opportunity and has the power to correct the racial discrimination in the administration of criminal justice which is currently accepted in and by the State of Louisiana.

If there are no further questions, I'd reserve the balance of my time.

Unknown Speaker: Very well, Mr. Burnes.

General Ieyoub, we'll hear from you.

Argument of Richard I. Ieyoub

Mr. Ieyoub: Mr. Chief Justice, and may it please the Court--

First of all, Your Honors, I would like to correct some of the statements made by counsel for petitioner.

He seems to indicate that there is wholesale discrimination around the State of Louisiana as to the selection of grand jury foremen.

There's never been any proof of this.

In fact, I know from personal knowledge that there have been black foremen of grand juries throughout the State of Louisiana--

Unknown Speaker: But then it's not a problem.

I mean, he just wants to have standing so he can make the claim.

Then you'd prove it out, right?

Mr. Ieyoub: --That's correct.

Unknown Speaker: And you'd say there wasn't, and he'd say there was, so we'd have an argument.

Mr. Ieyoub: That's correct, Your Honor.

Also, insofar as the selection of the foreman is concerned in Louisiana, the judge does not select from the large grand jury venire, the general venire of 300 persons.

What happens is that a grand jury venire is brought into the courtroom.

It can be as few as 20 and as many as 100, but the grand jury venire is brought into the courtroom, the judge selects the foreman from the grand jury venire after that venire has been shown to satisfy the general qualifications to serve as grand jurors and then the other 11 are chosen.

It takes 9 out of 12 to reach an indictment, so the fact that the grand jury foreman is necessarily a voting member of the grand jury does not necessarily portend that his responsibility should not be classified as merely ministerial.

Unknown Speaker: General Ieyoub, you don't dispute, do you the figures that were presented that for the last 16 years there's never been a nonwhite grand jury foreperson in Evangeline County?

Mr. Ieyoub: No, Your Honor.

That was stipulated to by the State.

Unknown Speaker: So it wouldn't matter what went on in other counties.

Except for... there's a curiosity in Louisiana law, and I'm sure you can tell me why this is so.

It doesn't work that way in New Orleans.

In New Orleans, the foreperson is selected from the group of 12 instead of separately.

Nobody knows why, except for the fact that those people in Orleans Parish think that they're different from the rest of the State, but in fact there... throughout Louisiana law there are exceptions for Orleans Parish.

I can't give Your Honor a reason.

Unknown Speaker: But you wouldn't have this problem if you did it throughout the State the way they do it in that parish.

Mr. Ieyoub: Well, Your Honor, in Orleans Parish the judge does choose the foreman and then the judge also selects the other 11.

Unknown Speaker: But--

Mr. Ieyoub: That's how I understand it done in Orleans Parish.

Now, in other places, other than Orleans Parish, the judge will select the grand jury foreman and then the other 11 are randomly selected out of the box and that's the way it's done in--

Unknown Speaker: --Maybe I remember the statute wrong.

I thought the others were selected in New Orleans just like they are in Evangeline, and it was only the foreperson that--

Mr. Ieyoub: --No, Your Honor, I don't think that that's the case.

In Evangeline Parish, of course, as I've stated the judge selects from the grand jury venire, and then the 11 are chosen randomly, the other 11 grand jurors.

Unknown Speaker: I just have one other quick thing that you had in your brief.

It says that... when you say... you said it was... the grand jury foreman's role is ministerial, but it says in your brief that the grand jury may determine rules of procedure.

What does that mean, may determine rules of procedure?

If you have the power to determine rules of procedure, that's an enormously important power.

I mean, can... what does that involve?

Mr. Ieyoub: --Your Honor, what I think that involves is basically ensuring that the proceedings go through in a very orderly way, not setting forth specific, distinct rules of procedure.

The grand jury foreman, as stated by the Louisiana supreme court, the Louisiana supreme court has interpreted Louisiana law to mean that the grand jury foreman's duties are, in fact, ministerial and--

Unknown Speaker: Well, is the foreman a voting member of the grand jury?

Mr. Ieyoub: --Yes, Your Honor, the foreman is a voting member of the grand jury.

Unknown Speaker: And has some power to set procedure.

Mr. Ieyoub: Has some power to set the procedure, but there is also a codal article in the Louisiana Code of Criminal Procedure that states that any of the other grand jurors may rule him into court if they disagree with what he's doing relative to the procedure that takes place in the grand jury, which is some indication that his power is no greater than the other.

Unknown Speaker: Well, Mr.--

--That still doesn't his power is just ministerial, unless you were to say that his power as foreman is ministerial but he has every bit as much power as any other grand juror in voting on indictments.

That's correct, isn't it?

Mr. Ieyoub: That's correct, Your... Mr. Chief Justice.

That is correct.

Unknown Speaker: And in Vasquez v. Hillery this Court referred to the grave constitutional trespass that occurs when jurors of a particular race are intentionally excluded from the grand jury, so if the proof is that in the case of one member of the grand jury that blacks are always excluded from this foreperson selection, then why doesn't that fit under Vasquez v. Hillery?

Why isn't there standing to raise that on the part of this petitioner?

Mr. Ieyoub: Your Honor, in Vasquez v. Hillery the petitioner, as I understand it, was a member of the excluded class.

In this case, there is no Article III standing as to equal protection.

Unknown Speaker: In the case of Powers, when the issue was with respect to a trial jury we didn't think that mattered.

Would there be a different rule on a grand jury?

Mr. Ieyoub: Your Honor, insofar as Powers is concerned, I would point out to the Court that Powers granted third party standing, not personal standing under Article III insofar as equal protection goes.

Unknown Speaker: Well, I guess that's an argument here, too.

Mr. Ieyoub: That's correct, Your Honor.

Unknown Speaker: Do you concede that at least the petitioner has third party standing under Powers?

Mr. Ieyoub: No, Your Honor, not in any sense and the reason I don't is because, in finding that the petitioner in Powers satisfied the three criteria necessary for third party standing, that is, injury in fact, relationship to the third party, and hindrance to the third party itself being able to bring an action, the Court placed strong emphasis on the importance of the voir dire phase of the trial and the adverse impact that discrimination during voir dire... the voir dire stage would have on the fairness of the trial itself.

In finding injury in fact, this Court pointed out that when there's discrimination during the voir dire stage by the use of peremptory challenges the discrimination is in the body that's going to decide guilt or innocence.

That's not true insofar as the grand jury is concerned.

The discrimination takes place during the trial itself.

Obviously, grand jury proceedings are long before--

Unknown Speaker: That's why I referred you to the Vasquez v. Hillery description of the grave constitutional injury that occurs on a grand jury situation.

Mr. Ieyoub: --I agree with you Your Honor, and I think the cases relative to... there's no question that there are grave consequences for discrimination, racial discrimination on grand juries.

Most of the cases have been whenever the petitioner has attacked the entire grand jury venire.

Peters v. Kiff was such a case, where the entire venire was attacked.

Rose v. Mitchell did involve attacking discrimination as to the foreman, but the petitioner in that particular case was a member of the excluded class.

Unknown Speaker: It was also prePowers the Court made that statement, so--

Mr. Ieyoub: That's correct, Your Honor, but again, I think that Powers should not be extended to cover this case.

Unknown Speaker: --But to this extent, why are they just the same.

One of the points made in Powers was that the person who was excluded from being on the jury in one case, yes, the grand jury, that is... was a most unlikely challenger, so you have to have this kind of surrogate standing because the person who was excluded, either from being on a petit jury or from serving here as the foreperson, that you... that would be something that you can't imagine, walking into court, that somebody says, oh, I could have been the foreperson so I'm going to sue, I'm going to spend my resources suing for that.

Mr. Ieyoub: Your Honor, in Powers the Court, in speaking of the third criteria, that is, hindrance to the party excluded itself from bringing the action stated that, as you said, Your Honor, that it would be very difficult for an individual juror excluded during the voir dire to bring... such actions are very rare.

Secondly, it's very difficult for the individual juror to prove that there would be discrimination against him or her recurring in the voir dire stage.

That doesn't hold true in this particular case.

I think the Court pointed out in Powers that discrimination with the use of peremptory exceptions as to individual jurors is different from when you have a systematic exclusion by clerks, by jury commissioners, by judges... there have been numerous actions brought by individual blacks alleging that there has been discrimination on... discrimination as to the selection of the foreman in the grand jury.

There seems to be no hindrance.

Terry Campbell is a very poor champion of third party rights in this particular case.

Unknown Speaker: But how is that any different from, say, Taylor v. Louisiana, where Taylor was certainly... Taylor was complaining that there were no women in the jury, and he was a man who raped a woman in front of her child and still he had standing to assert that claim.

Mr. Ieyoub: Taylor v. Louisiana?

Unknown Speaker: Yes.

Mr. Ieyoub: Again, Your Honor, I would suggest in Taylor, Taylor made a valid due process claim that the entire grand jury venire, that in that entire venire there had been an exclusion, systematic exclusion of women.

As such, that particular grand jury did not represent the varieties of human experience and the qualities of human--

Unknown Speaker: No, but now you're going to the substance of the claim rather than the issue of standing.

Mr. Ieyoub: --Well, Your Honor--

Unknown Speaker: Taking you at your argument here, would it be your position that if the State were to say, we will... in fact, we'll announce this, that we will in fact discriminatorily exclude blacks from 1/12th of all grand jury positions, one of the 12 positions will always go to a white, that in fact that would not support a claim with respect to the invalid composition of the jury?

Mr. Ieyoub: --Your Honor, as to equal protection, as to an equal protection claim--

Unknown Speaker: Well, no, I'm responding to your argument and your argument, if I understood it correctly, was that somehow we can respond to standing here by saying that there is no claim with respect to the composition of the grand jury as a whole.

If I misunderstood your argument, tell me, but I thought that's what you were arguing and so I want to see how far you will go with that and I'm saying, I'm asking you, if the State announced right up front, we are going to discriminate with respect to 1/12th of the positions on every grand jury, would that, in fact, be insufficient to support a claim with respect to the invalid composition of the jury and, on your argument, insufficient to result in standing for anybody?

Mr. Ieyoub: --Your Honor, I would... if the claim... if there is a claim that due process has been violated with the court's announcement that there's discrimination as to 1/12th of the grand jury, that being the grand jury foreman, then I think that we have to do an analysis as to whether or not discrimination as to that one person is so significant that it has an appreciable impact on the administration of criminal justice.

Unknown Speaker: Then the answer to my question is no, that alone would not--

Mr. Ieyoub: That's--

Unknown Speaker: --support a claim.

Mr. Ieyoub: --That's correct.

Unknown Speaker: But why wouldn't it?

I mean, why isn't there... you say that a white person has standing to say the grand jury that indicted me was too white.

That's right.

You concede that.

Mr. Ieyoub: That a white person--

Unknown Speaker: A white person can say there weren't enough black people on the grand jury that indicted me.

Mr. Ieyoub: --Yes, Your Honor.

Unknown Speaker: You concede that.

Mr. Ieyoub: Yes, I concede that.

Unknown Speaker: All right.

Now, somebody says, fine, that's my claim.

My claim is, if even one position was always white, then there were not enough black people on the grand jury that indicted me, so how could a person have standing to make the first argument but not have standing to make the second argument--

Mr. Ieyoub: Well, Your Honor--

Unknown Speaker: --since the second argument is the first argument?

Mr. Ieyoub: --Hobby v. United States felt... of course, Hobby was remedied, there's no question about that, but in Hobby v. United States the Court, or this Court found that if there is discrimination as to one individual, who in fact maintains a ministerial position and the rest of the grand jury as a whole meets the representational requirements or values of due process, then that... there has not been a violation of due--

Unknown Speaker: So then you would win on the merits.

Mr. Ieyoub: --We would win on the merits.

Unknown Speaker: But why would the person not have standing to argue that systematically discriminating in one position--

Mr. Ieyoub: Well--

Unknown Speaker: --creates as bad a grand jury from the point of view of the Constitution, or nearly as bad as discriminating in eight or nine or ten or three or four?

I would like to make the argument that constitutionally speaking those things are equivalent, or just about as bad, or wrong in any event.

There you had a white defendant who complained about the very same thing.

Mr. Ieyoub: Your Honor, the Court, or this Court did not speak of standing in Hobby.

Unknown Speaker: I know, but that's a threshold issue.

Nobody questioned standing in Hobby.

Mr. Ieyoub: That's correct, Your Honor.

Unknown Speaker: And of course, in Hobby there was... the foreman was chosen from among the 12 who had already been picked in a satisfactory crosssection.

Mr. Ieyoub: That's correct, Your Honor.

Unknown Speaker: So why isn't Hobby the answer to the standing issue in this case and that's the end of the case?

Mr. Ieyoub: We have different circumstances in this case than existed in Hobby, Your Honor and let me explain.

First of all--

Unknown Speaker: And they're relevant to the standing issue?

Mr. Ieyoub: --Relevant to the standing issue.

First of all, injury in fact.

In this case, for instance, Campbell's injury in fact, Mr. Campbell has not suffered an injury in fact.

He has not suffered a palpable, distinct injury and I think Hobby shows that.

Unknown Speaker: Did Hobby suffer a palpable, distinct injury.

Mr. Ieyoub: No.

No, Your Honor, he did not.

Unknown Speaker: So that... the cases are alike in that regard, then.

Mr. Ieyoub: They're alike in that regard.

Secondly, causation, as to causation there has... the injury has to be fairly traceable to the conduct complained of, or the illegal injury.

In this case, the State respectfully submits that in no way is the injury to petitioner fairly traceable to the fact that there might have been discrimination as to the grand jury foreman.

In fact, in this case the petitioner's grand jury had three blacks on the grand jury.

He had six blacks on the petit jury that convicted him.

He used five of his peremptory exceptions to knock off five blacks, where the State only used one peremptory exception.

How can it be said that there's causation as to standing here?

And finally, redressability.

It has to be shown--

Unknown Speaker: Excuse me.

You're assuming that the injury is the ultimate conviction, right?

Mr. Ieyoub: --Yes, Your Honor.

Unknown Speaker: Well, I mean, if that's the criterion I suppose there's never any standing to challenge the grand jury.

Mr. Ieyoub: Well--

Unknown Speaker: I mean, no harm, no foul.

The grand jury is only meant to determine whether there's probable cause to bring you to trial and if they do indict, no matter how badly it's set up, even if you make up a grand jury, once you're tried by a petit jury and found guilty, you haven't been harmed, right?

Mr. Ieyoub: --Well, Your Honor, this Court has held that if, in fact, there's... discrimination can be found--

Unknown Speaker: In--

Mr. Ieyoub: --Racial discrimination--

Unknown Speaker: --In the grand jury.

Mr. Ieyoub: --In the grand jury, that is, if there is discrimination--

Unknown Speaker: Right, which suggests that your argument is wrong.

Mr. Ieyoub: --No, Your Honor--

Unknown Speaker: The harm is not the ultimate conviction.

Mr. Ieyoub: --Well--

Unknown Speaker: There must be some other harm involved.

Mr. Ieyoub: --Even if we say that the harm is the fact that the individual was indicted, you must... again, I will show that in order for an indictment to come down in Terry Campbell's case it just took 9... 9 out of the 12.

We don't know what the vote was in this grand jury, whether or not the foreman actually voted for indictment or not, but in any event, I don't see how his injury is in any way fairly traceable to the alleged misconduct here, or any misconduct that might be alleged.

Unknown Speaker: But if we're talking about the alleged injury being the conviction, then wouldn't that be true in all the cases where someone who was not a member of the class, whether it was racial or gender, is allowed to make the challenge?

The case that I brought up before, is it likely that women on the jury would have been more favorable to Taylor?

He certainly didn't have to prove that, did he?

Mr. Ieyoub: No, Your Honor.

Now... but insofar as due process is concerned, in addition to injury in fact and causation, there has to be redressability.

That means that the petitioner must be... there has to be... it has to be likely that a favorable decision of the Court, that is, as to standing, would grant the relief that he's asking for and that would not the case, I don't think, in here, in light of Hobby v. United States.

If this Court would find, for instance, that he might have standing under the--

Unknown Speaker: Well, may I interrupt you with this question, then.

As I think all of our questions have indicated and you yourself agree, the difference between Hobby and this case was that in Hobby the discrimination did not affect the composition of the grand jury.

Here, it does.

If there was discrimination here, it affected the composition of the grand jury.

Isn't that the distinction between this case and Hobby?

Mr. Ieyoub: --Your Honor, you say that discrimination did not affect the Hobby... in Hobby--

Unknown Speaker: As I understand it, and you correct me if I'm wrong, in Hobby a grand jury was selected.

After that selection process, one person was designated to be the foreman.

In this case, one person is designated to be the foreman and the claim is that that discriminatory designation determines the composition of one out of 12 members of the grand jury.

Therefore, the discrimination here, if it is shown, affects the composition of the grand jury, who is one of the 12, whereas in Hobby it did not affect who was one of the 12, or whatever the number is.

Isn't... is that correct?

Mr. Ieyoub: --That's correct, Your Honor, but even if it affects the composition of the grand jury, we have to determine whether or not that particular effect violates due process values if he is making a claim under the Due Process Clause.

What I am saying is that the fact that there may have been discrimination as to the foreman in this case in no way violates the due process values because we have stated, and I think the Louisiana supreme court in interpreting our law has stated, that basically the grand jury foreman's duties are ministerial.

In addition, Hobby--

Unknown Speaker: Well, his duties as foreman may be ministerial.

We can accept that for the sake of argument.

His duty as a voting member of the grand jury isn't ministerial, is it?

Mr. Ieyoub: --No, Your Honor, but in Federal... in the Federal grand jury the foreman is also a voting member, if I'm not mistaken, so--

Unknown Speaker: Let me suggest the point this way.

As I understand the petitioner here, the argument really would be essentially the same if the person selected by this method of designation by the Court were not the foreman at all, were just one random member of the grand jury and therefore it seems to me, although it's... it certainly makes it a harder case, if you will--

Mr. Ieyoub: --That's right.

Unknown Speaker: --in one sense if the grand jury is... if the foreman's responsibilities are ministerial.

It doesn't eliminate the case, because the composition is still affected.

Mr. Ieyoub: The composition is affected, Your Honor, but how is it affected?

And let me point out that Hobby, in addition to talking--

Unknown Speaker: Well, the claim is.

It is affected in a discriminatory way in that 1/12th of every grand jury is going to be the result of a racial discrimination.

That's what the claim is.

Mr. Ieyoub: --Well--

Unknown Speaker: That's all that's affected.

Mr. Ieyoub: --Well, of course, the petitioner would have to prove a--

Unknown Speaker: Right.

Mr. Ieyoub: --Right, would have to prove--

Unknown Speaker: And that's why we have trials, but that doesn't go to... the question is, how does it affect standing?

Mr. Ieyoub: --In addition, Your Honor, just speaking of the foreman and the ministerial responsibilities of the foreman in Hobby, the Court pointed out that if there is discrimination as to one individual... in Hobby it happened to be the foreman, but that if there was discrimination as to one individual and the grand jury as a whole, the rest of the grand jury satisfied the representational requirements of due process, then that would not be enough to find that there had been a violation of the petitioner's rights.

Unknown Speaker: How many would it take, 2 out of 12, 3 out of 12, 4 out of 12?

When do we cross the line, on your reading of Hobby?

Mr. Ieyoub: Your Honor, I think that if in fact it can be shown that there is systematic exclusion of a number of individuals--

Unknown Speaker: Well, how many?

One is not enough.

What's enough?

Mr. Ieyoub: --Your Honor, I would say that one is not enough.

Unknown Speaker: All right.

How many is enough?

Mr. Ieyoub: We would have to take that on a casebycase basis, Your Honor.

Unknown Speaker: Well, you're not taking this on a casebycase basis.

Mr. Ieyoub: I would--

Unknown Speaker: You're saying one, as a matter of law, is not enough.

When do we get to the point at which, as a matter of law, it might be possible?

Mr. Ieyoub: --Whenever the petitioner makes the claim that the grand jury venire, the entire venire or a large part of the venire has been selected in a discriminatory way so that due process values have been violated.

In this particular--

Unknown Speaker: Well, the claim here is not that the venire was discriminatorily chosen, but that individuals were discriminatorily chosen from the venire, so if your argument is correct there never would be standing to make a claim because there never would be a claim.

Mr. Ieyoub: --Your Honor, I don't think that there would be standing to make a claim, as I said earlier, if there's an allegation that only... that there was discrimination as to the foreman of the grand jury, or any one of the other 12.

I don't think that there would be standing to make that claim there.

Unknown Speaker: Even though we found standing in Hobby.

You want us to ignore that.

Mr. Ieyoub: Yes, Your Honor, because I don't think--

Unknown Speaker: Well, I don't see how we can or should.

Mr. Ieyoub: --Well, Your Honor, I don't think that the petitioner in this case, as I have argued, has really satisfied the criteria for Article III standing under Allen v. Wright.

Unknown Speaker: If there were no Article III standing in Hobby, this Court would have had to say so on its own motion.

They found that there was no violation of due process rights and we would argue that Hobby should hold here.

Unknown Speaker: We said there was no remedy required in that.

Mr. Ieyoub: Remedy, yes, Your Honor, no remedy.

The basic claim of the petitioner in this particular case has been that he has third party standing to assert the rights of a third party.

That's his basic claim.

That's his chief claim.

His lawyer stood up at the motion to quash and argued, saying Terry's rights have not been violated.

He is asserting the rights of the third party that has been excluded.

It has always been third party standing and we suggest that, under Powers v. Ohio, that he doesn't have third party standing.

Powers v. Ohio granted third party standing because of the particular nature of the voir dire phase of the trial and the types of discrimination that took place at that time.

That did not occur.

How in the world can we say, with respect, Your Honors, that there is a bond of trust that is created between the petitioner and the third party whenever there's a selection of a grand jury foreman.

The defendant is not even present in court for... as a practical matter.

As long--

Unknown Speaker: I guess it's the case, isn't it... I mean, suppose a judge or the system deliberately excluded blacks from position number 4.

Position number 4 was always white.

That's illegal, isn't it?

Mr. Ieyoub: --Yes, Your Honor.

Unknown Speaker: Pure racial discrimination.

Mr. Ieyoub: Yes.

Yes.

Yes, Your Honor.

Unknown Speaker: All right.

Mr. Ieyoub: Yes.

Unknown Speaker: So if it's... they exclude blacks always from 5, 6, and 7 as well, then the white person has standing, in your view.

Mr. Ieyoub: Not as to equal protection.

Unknown Speaker: Well, 9, 10, 11... 4, 5, 6, 7, 8, 9, and 10.

Now, does the white person have standing?

Mr. Ieyoub: I think under due process the white person would--

Unknown Speaker: Yes, all right.

Now, what's your theory under which the white person has the standing if it's 4, 5, 6, 7, 8, 9, and 10 but it's not 1?

They're both illegal.

Mr. Ieyoub: --That--

Unknown Speaker: They're both grand juries, they're both... I mean, that's I think what people have been trying to get at.

What would the theory of the thing be?

Mr. Ieyoub: --Well, the theory of it would be, Your Honor, that this has a significant impact, that there's more of a significant impact on the administration of criminal justice, that due process representational values are not satisfied in the second case.

But as in this case he does not have third party standing.

He does not have... he has not shown that he satisfies the criteria in Article III that is stated, that is, injury in fact, causation, and redressability.

Unknown Speaker: General Ieyoub, may I ask you another question about how things work in Louisiana?

In your brief on page 28 you said that the... that the foreperson is presumably replaced every 6 months, as is the entire grand jury.

Is there any reason why you... it's only presumably?

Is it... does the--

Mr. Ieyoub: No, Your Honor.

I think that they are replaced.

Grand juries in Louisiana sit for not less than 4 months nor more than 8, and when a grand jury is dispensed with, then the grand jury foreman changes.

Unknown Speaker: --So it's always... they all change, including.

There's no difference.

Mr. Ieyoub: That's correct, Your Honor.

Unknown Speaker: There's no carryover, or--

Mr. Ieyoub: That's correct, Your Honor, unlike Tennessee in the Rose case, where the grand juror, jury foreman could sit for 2 years, or as long as a judge wanted him to sit.

But Your Honors, with all due respect, we feel that Petitioner Powers' conviction should be affirmed.

This court is always adding stories to the temples of constitutional law, but Your Honors, if the Court please, we urge Justice Jackson's caution and that is that the temples have a way of collapsing if one too many stories is added.

Your Honors, we request that the conviction be affirmed.

Unknown Speaker: --Thank you, General Ieyoub.

Mr. Burnes, you have 8 minutes remaining.

Rebuttal of Dmitrc I. Burnes

Mr. Burnes: May it please the Court--

I would like to address a few of the points raised by General Ieyoub.

The injury here, the harm involved when you're looking at the claims which would fall under Article III standing, is the right not to be indicted by a nonimpartial grand jury.

Unknown Speaker: But look... look... I mean, I have no problem with your due process standing.

I do have a problem on the merits of the due process claim, which is supposed to be an assertion that the conviction here was fundamentally unfair.

Your client had a petit jury, fairly chosen... you made no claim that that wasn't fairly chosen... which found your client guilty beyond a reasonable doubt of the crime alleged.

Now, the only function of the grand jury beforehand is not to find whether he's guilty beyond a reasonable doubt, but to find whether there's reason to believe, adequate reason to believe that he might have committed it, to have him tried.

Well, my goodness, we've gone beyond that.

I mean, the game's over.

A petit jury has said yeah, there's not only reason to believe, he is guilty beyond a reasonable doubt.

What is fundamentally unfair about your client's conviction?

Mr. Burnes: That he was denied the opportunity to have an impartial grand jury look at the evidence presented to that grand jury and say, we're only going to indict him for manslaughter, or we're not even going to indict him at all.

That is a right that the citizens have.

Unknown Speaker: But there could be no possible mistake a grand jury's having found there to be probable cause, given that a petit jury found beyond a reasonable doubt that he's guilty.

I mean, I... you know, it's a terrible thing to exclude people like that, and maybe somebody had... I'm sure a black grand juror who has been excluded could set it right, or the Justice Department could bring suit to set it right, but I don't see why your client has been convicted in a fundamentally unfair manner.

He's had a petit jury that, fairly chosen, found him guilty beyond a reasonable doubt.

Mr. Burnes: Mr. Campbell was convicted.

However, he has the right to have the grand jury look at the evidence and say, we're only going to indict for manslaughter.

Unknown Speaker: He has that right and there was an error made and somebody should correct that, but did that error deprive him of... make his conviction fundamentally unfair?

Mr. Burnes: Your Honor, we aren't arguing that the conviction was fundamentally unfair.

We are arguing that he was denied his rights at that grand jury stage.

Unknown Speaker: --Well, in the Mechanic case in the Federal courts we held that even though a Federal grand jury does not conform to the requirements set up by Congress, nonetheless, if the person is convicted, the shortcomings of the grand jury are harmless error.

Why doesn't the same thing follow in this situation insofar as your due process claim is concerned?

Mr. Burnes: Your Honor, there's... because the long line of cases from this Court which find that racial discrimination at the grand jury--

Unknown Speaker: But those are not due process cases.

Mr. Burnes: --Well, with respect to the due process, I believe there is a due process harm there when, in order to be convicted and sentenced to a life sentence in Louisiana, the citizen has a right to the indictment by the grand jury and the grand jury here was not impartial, did not have... he was not--

Unknown Speaker: Well, when you say not impartial that suggests that some members of the grand jury were prejudiced against your client.

Now, there's no evidence of that, is there?

Mr. Burnes: --Well, as--

Unknown Speaker: Is there?

Mr. Burnes: --Your Honor, there is no evidence in the record of that and you can't see the evidence in the record of that and that's pointed out very clearly in the Vasquez v. Hillery case, where--

Unknown Speaker: Which was an equal protection case.

Mr. Burnes: --Which says that you cannot determine--

Unknown Speaker: You're just melding together the Equal Protection Clause of the Fourteenth Amendment and the Due Process Clause, it seems to me.

Mr. Burnes: --Well, Your Honor, the analysis, the argument right there that you cannot tell what the harm is because you're not allowed to look at those deliberations and look at those votes is equally as strong in the due process area as in the equal protection area.

Unknown Speaker: You know, this seems to be sort of the gaming theory of criminal justice.

Your client, with a different grand jury, might have been lucky enough to get a grand jury that didn't find sufficient cause to bring an indictment, might have been that lucky, although it's clear there was sufficient cause to bring an indictment.

Indeed, he was found guilty beyond a reasonable doubt.

I find it hard to find that a deprivation of fundamental fairness.

The only issue for the grand jury was whether there was enough evidence here to bring the prosecution and that's been established by the conviction.

It's been established a fortiori.

It's been established 10 times over by conviction beyond a reasonable doubt.

I find it hard to see that your client's been deprived of fundamental fairness.

Mr. Burnes: Your Honor, that's where we would disagree with Your Honor, that--

Here, the harm is that he's not given a chance for the grand jury to say, you know, this defendant may or may not have done that, we're going to only find for manslaughter, and not subject him to that life sentence.

Unknown Speaker: Was there a majority opinion for the Court in Kiff?

I thought there was not.

I thought we really don't know what was--

Mr. Burnes: I don't recall, Your Honor.

Unknown Speaker: --3-3-3, as I recall.

Mr. Burnes: Okay.

Your Honor, I'd like to... Your Honors, I'd like to address a few more issues.

One is that General Ieyoub raised the point that only 9 votes were needed by the grand jury again on that case that would seem to be urging an issue, urging a rule that we could discriminate on 3 out of the 12 grand jury members, still get 9 votes from the other ones and have a valid indictment.

I don't believe that is a good rule.

General Ieyoub has also argued that the Louisiana supreme court has said that the grand jury foreman is ministerial, but you have to look at where the grand jury... where the Louisiana supreme court said that.

That was in this case which is under review here.

The problem here that there was systematic exclusion by the judge and that Petitioner Campbell has been denied standing to raise these claims.

Whenever the State has argued against it they start going to the merits of the claims.

They start saying how he's got to prove this or prove that with respect to due process, yet Petitioner Campbell isn't given an opportunity to prove whether there was a due process violation or an equal protection violation or a Sixth Amendment violation when he's not given standing to assert them.